Australia’s rights in our constitution in comparison to usa’s Bill of Rights



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Australia’s rights in our constitution in comparison to USA’s Bill of Rights.

The Australian Constitution contains 5 expressly protected rights and, currently, one implied right.

1. Freedom of Religion

Section 116 provides that no law may establish a state religion, impose any religious observance, prohibit the free exercise of any religion, or require a religious test as a requirement for Commonwealth office. Section 116 also protects non-believers by indirectly providing for the ‘right of a man to have no religion’. However, the section prohibits only Commonwealth laws from restricting religious freedom in these ways; it does not to apply to state laws.

2. Interstate Trade and Commerce

Section 92 states that interstate trade and commerce is to be free. This right is more a structural underpinning of the economy to prevent parochial restrictions on economic activity, rather than a fundamental democratic or human right.

3. Discrimination

It is unlawful for state and Commonwealth governments to discriminate against someone on the basis of that person’s state residence (s.117).

4. Just terms when acquiring property

The Commonwealth must provide ‘just terms’ when acquiring property, as per Section 51(xxxi). This means that the Commonwealth can acquire someone’s property, but must pay fair compensation. It does not apply to acquisition of property by state governments.



5. Jury trial

There must be a jury trial for indictable Commonwealth offences (s.80). However, this is a very limited right because:



  1. • most indictable offences are crimes under state law, and s.80 only applies to Commonwealth offences

  2. • the High Court has ruled that ‘indictable’ means ‘crimes tried on indictment’. Hence, the government can avoid a jury trial for a particular offence by legislating for the offence to be a summary offence.

The High Court has found that the Constitution contains an implied right to free political communication. As our Constitution established a system of representative government, free political communication is necessary for that system to operate properly. The court has not found that a general right to free speech is implied by the Constitution, but only a right in regard to matters which can be described as “political communications”.



USA

  1. • The protection of democratic and human rights is contained in a Bill of Rights that takes the form of a series of amendments to the US Constitution.

  2. • The Bill of Rights contains a comprehensive or extensive list of rights. Students could use examples to illustrate this or refer to specific cases, such as the Roe v Wade abortion case.

  3. • The rights are fully enforceable. This means that legislation that infringes any of those rights can be declared invalid by the US federal courts.

  4. The rights are entrenched, which means that a right can only be abolished if the Constitution is amended. This is a more complex process than is used in Australia, involving separate referenda being held in each state.

  5. • The list of protected rights can be added to through constitutional amendment (for example, slavery was abolished after the Civil War and the vote introduced for 18 year olds in 1971).

  6. • It includes implied rights; for example, a right to privacy has been implied. In Roe v Wade (1973) this right was extended to cover the relationship between patient and doctor, and hence make it unlawful to interfere in doctor-patient issues on matters such as abortion.

2009 Paper Question 9B

Is the Commonwealth Constitution an ‘ineffective mechanism for protecting human and democratic rights’? Justify your answer (6 marks).

Students could have made some of the following points about the Constitution’s strengths and weaknesses.


Strengths

• The five express rights can only be removed by amending the Constitution using s.128 – this is a difficult process, making it unlikely these rights will be removed easily.

• The High Court has the ability to imply rights; this is noted in the implied right to political communication.

• The rights are fully enforceable by the High Court – that is, the High Court may declare legislation invalid if it contravenes one of these rights.

• Additional rights can be added through the s.128 process. The High Court can also imply further rights (including make further statements in ratio on the right to vote) but needs to wait for a case to come before them.

• Rights are defined by parliament, which can be done more easily and ensures confidence in the legislatures.

• Rights are protected by legislation and common law – this ensures they can be continually added to and amended to keep with changing values.

• None of the protected rights can be overridden by parliament (contrast Canada where parliament can override a court order that has declared a law invalid because it infringes a right).


Weaknesses

• The Constitution contains a limited number of express rights. The list is not comprehensive, particularly in comparison to other countries such as South Africa and Canada.

• The just terms and interstate trade and commerce rights are more operational/economic. Right to jury is limited to indictable Commonwealth offences.

• There are some limitations on the scope of the express rights and the implied right.

• The High Court does not give advisory opinions on the scope of the protection of rights. It will only rule on those matters (and any other matters) when a dispute is before the Court and a judgment is required (contrast Canada where the court can give an advice on proposed legislation).

• There is no requirement to develop the common law or to interpret legislation in such a way as to promote the concept of protected rights (contrast South Africa, for example, where courts must promote the spirit and purpose of the Bill of Rights).


This question required students to reach a conclusion as to whether or not the Constitution is effective in protecting human and democratic rights, and justify this conclusion. Students could have taken one of two approaches and both approaches were acceptable. Some students focused solely on Australia and discussed the strengths and weaknesses of the Constitution in protecting rights. Other students assessed Australia’s approach by looking at the extent of the protection offered in the Constitution in comparison to another country.
Many students did not provide sufficient detail to earn full marks. Some students described the five entrenched rights and implied right to political communication without any attempt to discuss whether the Constitution was effective in protecting these and other rights.
Better responses talked about the limited number and limitations of entrenched rights, the ability of the High Court to imply rights, and the strict referendum process, thereby ensuring those entrenched rights cannot be easily removed.
The following is an example of a good answer.

Our Constitution is not an ‘ineffective mechanism’ for protecting rights. While the Commonwealth Constitution does not protect a large range of democratic and human rights, it is very effective in protecting the rights that do exist.
The Constitution protects five express rights – freedom of religion, acquisition of property on just terms, trial by jury for a commonwealth indictable offence, free trade between states and no discrimination between people on the basis of which state they live in. The High Court has also implied one right in the Constitution – freedom of political expression.
The express rights are very well protected, as it is very difficult to change the wording of the Constitution by referendum. The nature of at least one implied right also means that the High Court has the ability in the future to imply certain rights in our Constitution.
Further, if a law was made which contravenes one of these rights, the High Court can rule this law ultra vires as it has the power to fully enforce any of these rights.
There are some weaknesses. Some of the rights that are protected are limited in their scope – for example, the right to trial by jury is only for those offences which are indictable commonwealth offences. Australia also does not have a comprehensive list, such as those protected in the USA’s Bill of Rights, which is a far more comprehensive and detailed mechanism for protecting rights.
In conclusion, whilst our Constitution does protect some rights, and does protect them well, the number of rights that are protected is not comprehensive.
2008 Paper

Question 5

Using one of the countries listed below, explain two ways in which that country’s approach to the constitutional protection of democratic and human rights is similar to, or different from, the approach provided by the Commonwealth Constitution of Australia.


The countries you may use for the comparison with Australia are Canada, New Zealand, South Africa, the United Kingdom or the United States of America.
(In your answer you may explain two similarities, or two differences, or one similarity and one difference.) 4 marks
The material tested by this question is the most recent inclusion in the study design and students had a reasonably strong command of the information. All countries provided for comparison were present in student responses; however, the most popular countries were Canada and South Africa. It is important that students use the information in the way required by the question, as many students simply listed the ways that rights are protected in Australia and in their chosen country of comparison. Better answers explained Australia’s approach to the constitutional protection of rights and then drew a comparison or contrast with their chosen country. The emphasis needed to be on how rights are protected or the approach that is used to protect rights, rather than the rights in a specific sense.
The following is an extract from a good answer.

The Commonwealth Constitution of Australia differs in its approach to the protection of rights from Canada in that the Australian Constitution has only five express rights that are entrenched, for example the right to freedom of religion (s116).
Canada is different in that it has an entrenched bill of rights through the Canadian Charter of Rights (1982) that expressly protects a significant number of democratic, mobility, legal and language rights.
The following information could also have been used when answering this question.

United States of America

• The protection of democratic and human rights is contained in a Bill of Rights that takes the form of series of amendments to US Constitution. (Australia has no Bill of Rights.)

• The Bill of Rights contains a comprehensive or extensive list of rights. Students could use examples to illustrate this, or refer to specific cases such as Roe v Wade (an abortion case). (Australia does not have an extensive list of rights.)

• The rights are fully enforceable. This means that legislation that infringes any of those rights can be declared invalid by the US federal courts. (In Australia, the High Court can declare legislation invalid if it is outside its powers.)

• The rights are entrenched, which means that a right can only be abolished if the Constitution is amended. (Although similar, this is a much more complex process than we use in Australia, involving separate referenda being held in states.)

• The list of protected rights can be added to through constitutional amendment, for example, slavery was abolished after the Civil War and the vote was introduced for 18 year olds in 1971. (In Australia, rights can only be expressly added through the referendum process.)

• It includes implied rights; for example, a right to privacy has been implied. In Roe v Wade (1973) this right was extended to cover the relationship between patient and doctor, and hence make it unlawful to interfere in doctor-patient issues on matters such as abortion. (Australia also has at least one implied right, which is the right to political communication as discussed in Lange v ABC.)

2007 paper: Question 11

.Australia’s approach to the constitutional protection of democratic and human rights is different from, and not as effective as, the approach adopted in the United Kingdom, the United States of America, Canada, New Zealand and South Africa.


Compare Australia’s approach to the constitutional protection of democratic and human rights with the approach adopted in one of the countries listed above. In your answer, evaluate how effective the Commonwealth of Australia’s Constitution is in protecting democratic and human rights. (8 marks)
Students generally provided well-prepared answers to this question. It is important that students are able to compare the ‘approach’ that is used to protect human and democratic rights in Australia and one of: the United Kingdom, the United States of American, Canada, New Zealand or South Africa. In this question students also had to be able to evaluate how effective the Commonwealth of Australia’s Constitution is in protecting democratic and human rights.

The 2006 Legal Studies Assessment Report contains further information that is helpful for questions of this type. The following material could also be used when making comparisons between the approach in Australia and the selected country.


Australia

The Australian Constitution contains expressly protected rights and, currently, one implied right.



1. Freedom of Religion

Section 116 provides that no law may establish a state religion, impose any religious observance, prohibit the free exercise of any religion, or require a religious test as a requirement for Commonwealth office. Section 116 also protects non-believers by indirectly providing for the ‘right of a man to have no religion’. However, the section prohibits only Commonwealth laws from restricting religious freedom in these ways; it does not to apply to state laws.



2. Interstate Trade and Commerce

Section 92 states that interstate trade and commerce is to be free. This right is more a structural underpinning of the economy to prevent parochial restrictions on economic activity, rather than a fundamental democratic or human right.



3. Discrimination

It is unlawful for state and Commonwealth governments to discriminate against someone on the basis of that person’s state residence (s.117).



4. Just terms when acquiring property

The Commonwealth must provide ‘just terms’ when acquiring property, as per Section 51(xxxi). This means that the Commonwealth can acquire someone’s property, but must pay fair compensation. It does not apply to acquisition of property by state governments.



5. Jury trial

There must be a jury trial for indictable Commonwealth offences (s.80). However, this is a very limited right because:

• most indictable offences are crimes under state law, and s.80 only applies to Commonwealth offences

• the High Court has ruled that ‘indictable’ means ‘crimes tried on indictment’. Hence, the government can avoid a jury trial for a particular offence by legislating for the offence to be a summary offence.


The High Court has found that the Constitution contains an implied right to free political communication. As our Constitution established a system of representative government, free political communication is necessary for that system to operate properly. The court has not found that a general right to free speech is implied by the Constitution, but only a right in regard to matters which can be described as “political communications”.
USA

• The protection of democratic and human rights is contained in a Bill of Rights that takes the form of a series of amendments to the US Constitution.

• The Bill of Rights contains a comprehensive or extensive list of rights. Students could use examples to illustrate this or refer to specific cases, such as the Roe v Wade abortion case.

• The rights are fully enforceable. This means that legislation that infringes any of those rights can be declared invalid by the US federal courts.

• The rights are entrenched, which means that a right can only be abolished if the Constitution is amended. This is a more complex process than is used in Australia, involving separate referenda being held in each state.

• The list of protected rights can be added to through constitutional amendment (for example, slavery was abolished after the Civil War and the vote introduced for 18 year olds in 1971).



• It includes implied rights; for example, a right to privacy has been implied. In Roe v Wade (1973) this right was extended to cover the relationship between patient and doctor, and hence make it unlawful to interfere in doctor-patient issues on matters such as abortion.



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